Torturous Progress: Early Cases Under China's New Procedures for Excluding Evidence in Criminal Cases

TORTUOUS PROGRESS: EARLY CASES UNDER
CHINA'S NEW PROCEDURES FOR EXCLUDING
EVIDENCE IN CRIMINAL CASES

By Jeremy Daum*

I. Introduction 699

II. Lawyers Ignored 701

III. Lifting the Burden of Proof 704

IV. Excluded but Not Forgotten 709

V. Conclusion 711

I. Introduction

Only six months after the new 'Rules on Certain Issues
Relating to the Exclusion of Illegal Evidence in Criminal
Cases' (Rules) 1 took effect, Zhang Jun, Vice President of
China's Supreme People's Court (SPC), announced that
China's exclusionary rule "has not been strictly implemented."

* Jeremy Daum is a research fellow at New York University U.S.-Asia
Law Institute. He would like to thank Professor Margaret Lewis for her excel-
lent and comprehensive piece on China's new criminal evidence rules and
the opportunity to contribute this short comment to accompany it. He
would also like to thank Professor Jerome A. Cohen, to whom this edition is
dedicated and to whom all foreign scholars of Chinese Law owe a lasting
debt. This comment was written in January 2011, and does not account for
developments after that time.

1. See "Guanyu banli xingshi anjian paichu feifa zhengju ruogan wenti
de guiding" de Tongzhi

((^mmmmmmmmm^immm) smm ["Rules on

Certain Issues Relating to the Exclusion of Illegal Evidence in Criminal
Cases"] (promulgated by the Supreme People's Court, Supreme People's
Procuratorate, Ministry of Public Security, Ministry of State Security, and
Ministry of Justice, June 13, 2010; effective July 1, 2010), available at http://
www.spp.gov.cn/site2006/2010-06-25/00054281 15.html [hereinafter the
Rules] .

The Rules were released together with another regulation, Guanyu
Banli Sixing Anjian Shencha Panduan Zhengju ruogan Wenti de Guiding"

((^^mmmi^mmmm^nmmm)) m r^ies on certain

Issues Relating to Examining and Judging Evidence in Death Penalty
Cases"], which provides more extensive evidence rules for capital cases, in-
cluding the foundation for a best evidence rule, a hearsay rule, and addi-
tional evidence exclusion. This comment focuses almost exclusively on the
Rules.

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Speaking to the Criminal Law Committee of the All China
Lawyers Association (ACLA), Zhang conceded that while
forced confessions, the main target of the Rules, clearly occur,
and lie at the heart of almost all known wrongful convictions,
no case has yet emerged where the evidence before the court
was sufficient both to affirm such an abuse and to exclude a
confession. 2

The Rules, which detail procedures for challenging the
admissibility of evidence, were hailed as a major victory for
China's developing legal system when released. They promised
to revitalize China's largely dormant exclusionary rule by stat-
ing for the first time when and how allegations of illegal evi-
dence-gathering should be raised, who must prove such
abuses, the standard of proof required, and the possibility of
in-court witness testimony by law enforcement. Their release
by five government offices, including the SPC, the Supreme
People's Procuratorate (SPP), the Ministry of Justice, and the
nation's top law enforcement agencies, demonstrated unified
support for the reforms from all government players in the
criminal process. Less than a year later, however, scholars who
warmly received the new Rules have begun to criticize their
shortcomings, and defense attorneys have found that in prac-
tice there are still enormous obstacles to convincing courts to
exclude evidence. Inartful drafting and a complicated power
imbalance among China's criminal law branches create a real
risk that, like earlier criminal procedure advances, the Rules
will quickly lose all but symbolic value.

It is, of course still far too early to know the Rules' ulti-
mate effect. The lack of transparency in Chinese courts makes
it difficult to gather data on even their initial impact, and
given the lack of time and resources to conduct an empirical
study, it is not yet possible to present a comprehensive picture
of how the Rules are playing out in practice. Still, by reviewing
media reports of relevant cases and following the evolving
commentary of vocal experts, a limited understanding of cur-
rent conditions begins to emerge. This brief comment aims to

2. SunYing (J/}\=jf), Zuigaofa: Feifa zhengju paichu yuanze wei yange zhixing
: mmmVmmmrmm) [Supreme People's Court: The
Principle of Evidence Exclusion Has Not Been Strictly Implemented],
Zhongguo Guangbo Wang (^gpfff^)) [CNR], Jan. 10, 2011, http://
www.cnr.cn/china/newszh/yaowen/201101/t20110110_507564061.html.

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provide readers with such a keyhole view of some of the chal-
lenges China will face in keeping the Rules vital.

II. Lawyers Ignored

In his comments to the ACLA, Zhang Jun urged criminal
lawyers to be more aggressive in questioning the validity of evi-
dence, and emphasized that procedural arguments should be
at the center of their defense strategies. He chided his audi-
ence by telling them that the SPC had uncovered more than a
few cases where improper procedures led to exclusion of DNA
evidence, but that lawyers had not yet found a single such case.

In a stirring published response, 3 Tian Wenchang, direc-
tor of the ACLA Criminal Law Committee, accepted this criti-
cism, saying that years of practice in a system emphasizing sub-
stantive over procedural justice has led lawyers to focus pre-
dominately on factual arguments. Directives from the SPC
and SPP previously forbade the use of illegal evidence as a ba-
sis for conviction or indictment, but there was no explicit role
for lawyers in challenging the admissibility of evidence. The
Rules provide lawyers a new foundation for launching proce-
dural attacks by making exclusion the subject of in-court trial
proceedings. Tian sees this as an opportunity to change the
direction of criminal defense practice and strengthen the pro-
fession, saying that "if the arrival of the Rules establishes the
principle of excluding evidence, only through the efforts of
lawyers can the principle be fully expressed." He further ex-
plained, "procedural defense is not merely necessary for a suc-
cessful defense, but is an obligation performed by lawyers to
protect judicial fairness." 4

The inertia of China's beleaguered defense bar is only
one of many reasons the Rules have stumbled. In a recent sur-
vey of fifty defense attorneys, only about 20 percent had at-
tempted to invoke them. 5 Those who had, however, univer-

3. Tian Wenchang (EH>Cll)> Xingshi bianhu buneng fangzong feifa zhengju
(MW^^ntMMNMitW [Criminal Defense Cannot Abide Illegal Evi-
dence], Fazhi Zhoumo (tS'/nMlT^) [Legal Weekly] , Jan. 11, 2011, available
at http://www.legalweekly.cn/content.jsp?id=165554&lm=%E6%A0%B8%
E5%BF%83%E6%8A%A5%E9%81%93.

4. Id.

5. Yang Ming Of^B^) & Zhang Hailin (^S^), "Feifa zhengju paichu"
panshan qibu (<#^Mtfef^>> MMMLP) ["Evidence Exclusion" off to a
Shaky Start], Liaowang Dongfang Zhoukan (WM/frJjM^l) [Oriental

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sally reported that the effect was muted. In one extreme ex-
ample, lawyer Xu Lanting, said that when he requested that
the court examine allegations of illegal evidence, the judges
simply ignored him without further comment. This is clearly
contrary to the Rules' article 5 requirement that courts initiate
an inquiry following receipt of the defense's written motion. 6
In Jiangxi province and Beijing, lawyers arguing that their cli-
ent's confessions were coerced did have the opportunity to de-
bate the issue in court, a welcome improvement, but the
judges never put forth any conclusions or comments. 7 Faced
with such lackluster responses, lawyers will likely soon lose con-
fidence in the Rules and devote their limited resources else-
where.

More disheartening still is the SPC's handling of the Fan
Qihang case. Fan, an entrepreneur swept up in Chongqing's
massive crackdown against organized crime, was sentenced to
death for murder and other offenses despite repeated protes-
tations at his trial and appeal that his confession was false and
extracted by torture. 8 The Rules became effective only as the
SPC was performing its final review of the death sentence. As
the review proceeded behind closed doors, Fan's daring law-
yer, Zhu Mingyong, publically released and submitted to the
court clandestine videotapes of Fan discussing his treatment
and displaying scars on his arms. Still, the SPC never even
contacted Zhu nor allowed him to participate in the review
process, straight through to Fan's execution. 9

Prominent human rights lawyer Teng Biao passionately
articulated the reaction of China's criminal defense commu-
nity: "Fan's execution tells everyone that these regulations are

Outlook], Nov. 29, 2010, available at http://www.lwdf.cn/wwwroot/dfzk/
current/249852.shtml.

6. Id.

7. Id.

8. Supreme People's Court Approves Fan Qihang Execution Despite Allegations
of Torture, Congressional Executive Commission on China (Dec. 10, 2010),
http://www.cecc. gov/pages/virtualAcad/index.phpd?showsingle=146224&
PHPSESSID=F8a2ece69120fle6c8bc4a2ef5cl936a.

9. The Rules do not specifically address their invocation at the SPC final
review of death penalty cases phase, but even prior to the Rules, the court
should not have allowed a forced confession to serve as the basis of convic-
tion.

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703

useless." 10 "What we can't accept," adds lawyer Wang Xing, "is
that in the SPC's ruling, there is not even a word regarding
torture or the defense's opinions." 11 The SPC, however, has
remained entirely silent as to why it let this perfect opportunity
to model the Rules pass by. Instead, we have only the laugha-
ble protestations of an unnamed SPC official that the allega-
tions of torture "weren't ignored and were mentioned in the
[internal] investigative and deliberation reports, but that the
ruling form has no space for defense opinions." 12

The truth that Zhang Jun ignores and Tian Wenchang
diplomatically alludes to is that Chinese defense lawyers are no
strangers to this type of treatment. They are often viewed as
agitators who intentionally obstruct justice to defend the
guilty, rather than as defenders essential for ensuring fairness
at trial. Reforms to the Law on Lawyers in 2007 introduced
procedures to improve defense attorneys' ability to protect
their client's rights, but public security officials and prosecu-
tors have had little trouble finding new ways to obstruct law-
yers' access to case files, private investigations, and client meet-
ings. Lawyers attempting vigorous criminal defense have faced
threats, disbarment, prosecution, and even violent reprisals for
their work, such that criminal defense is now openly referred
to as a high-risk profession, which few new lawyers are willing
to undertake. 13 A dark joke among criminal law professors is
that more of their students will end up as criminal defendants
than as defense attorneys.

Yet, if lawyers cannot successfully be heard under the
rules, what of the vast majority of defendants who remain un-
represented in China? Chinese law only requires appointment
of counsel for criminal defendants who are blind, deaf, mute,

10. Paul Mooney, Chongqing Execution Raises Political Spectre, S. China
Morning Post, Oct 3, 2010, available at http://www.pjmooney.com/en/
Most_Recent_Articles/Entries/2010/10/3_Chongqing_execution_raises_
political_spectre.html.

11. Yang & Zhang, supra note 4.

12. Id.

13. Sun Jibin (J/J^H^), Xingshi bianhu "san nan" weihe bian "shinan"
{MWW «3f » <"bf ») [How Criminal Defense's "Three Diffi-
culties" became "Ten Difficulties"], Fazhi Zhoumo (^toJH^) [Legal
Weekly], Jan. 18, 2011, available at http://www.legalweekly.cn/contentl.jsp?
id=l 65663.

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INTERNATIONAL LAW AND POLITICS [Vol. 43:699

minors, or facing the death penalty. 14 Defendants in remote
areas may have difficulty even hiring counsel, as over 200
counties still lack even a single attorney. Without the gui-
dance of capable counsel, defendants are unlikely to know of,
let alone successfully invoke, the procedurally sophisticated
Rules, and there is no incentive for the court, police, or prose-
cution to inform them of their rights. Tellingly, all reported
cases invoking the Rules to date have involved represented de-
fendants.

III. Lifting the Burden of Proof

Articles 6 and 10 of the Rules require defendants alleging
police misconduct in obtaining a confession to substantiate
their claim by providing "leads," such as the time, place, and
nature of the violation, and the names of persons involved.
Beyond this initial showing, the burden is on the prosecution,
under articles 10(3) and 11, to present credible and sufficient
proof that eliminates suspicion that the alleged conduct oc-
curred. Defendant's burden of production is intended to limit
baseless claims of coercion, but because a victim of abuse is in
a poor position to gather evidence from his tormentors, he
cannot be expected to offer much detail. 15 The Rules are si-
lent, however, on what level of proof the defendant must offer,
and this oversight might prove a substantial barrier in practice.

In the case of Song Liguang, a county-level official ac-
cused of accepting bribes, the defense encountered just such a
problem. Song disavowed earlier confessions, alleging that
they were made only after he was kept from his lawyer, trans-
ferred repeatedly, exposed to freezing temperatures with mini-
mal clothing, suspended by his arms, kept from sleeping,
struck with an electric prod, told his family would be pun-
ished, and once interrogated continuously for five days. Dur-
ing a dramatic hearing on the evidence, Song was able to iden-
tify the detention center where the conduct occurred. When

14. Zhonghua Renmin Gongheguo xing shi su song fa [PRC Criminal
Procedure Law] article 34 (promulgated by the Nat'l People's Cong., Jul. 1,
1979, amended Mar. 17, 1996, effective Jan. 1, 1997) (China) [hereinafter
CPL];

15. Xingshi Zhengju Guize Lijie Yu Shiyong
(MW^WMWM^^M) [Criminal Evidence Rules: Understanding and
Implentation] 318-29, (Zhang Jun (jjft^) et al. eds., 2010).

2011]

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confronted with written statements by three investigators refut-
ing his claims, he confirmed that two of them had not tortured
him, that one had threatened him, and then named nine
other offenders — only to be told that they were away on busi-
ness and unavailable to comment. Despite this high level of
specificity, the court said that Song had provided only "con-
ceptual materials" but not "concrete leads" as required by the
Rules. 16

Yet the court did not immediately admit the confessions
into evidence, as article 10 allows it to do when the defense
fails to provide leads, or when the court has no question as to
the legality of the challenged evidence. Instead, the court ad-
journed for further investigation. When Song's lawyer then re-
quested a court order to assist in gathering further evidence
from investigators and prison officials, the court refused, say-
ing that the defense has the right to conduct its own investiga-
tion and only in situations where it is truly impossible for the
defense to obtain evidence can it apply to the court for assis-
tance. Putting aside questions of the legitimacy of Song's
claims, 17 the court's statements betray a deep misunderstand-
ing of the Rules. Its emphasis on the "leads requirement" and
defendant's own investigation makes clear that the court ex-
pected Song to prove that misconduct occurred, which is of
course, not the burden he bears.

If this was the judges' thinking, they are not alone. Pro-
fessor Chen Weidong of Renmin University tells of another
judge who approached him asking for advice on handling a
similar case. 18 The suspect in that case moved to exclude his
confession, showing injuries suffered while in a detention

16. Liu Mengyue ($[J§£^1) & Du Xiao (tiB^), Lezhi yuan jiaotongjuzhang
shouhui "danao" gongtang (fcl&M^WMj&^kM (^[1> [Former
Lezhi County Head of Transportation Ministry, Accused of Accepting
Bribes, Creates Spectacle in Court], Fazhi Ribao (^f|!j0M) [Legal Daily],
Jan. 20, 2011, available at http://www.legaldaily.com.cn/legal_case/content/
201 1-01 /20/content_2450197.htm?node=21 135.

17. Song was convicted and sentenced to eleven years after a second
hearing three months later, at which the prosecution presented ten addi-
tional pieces of evidence. It is unclear what these were from media reports,
or whether numerous questions surrounding the prosecution's initial evi-
dence were ever resolved. Id.

18. Li Enshu & Zheng Xiaoqiong (^/JvEj^), Chengxuxing bianhu
yuanhe quewei (fM^p[4^¥ ffitMtf$M±0 [How Procedural Defense Became
Omitted], Fazhi Zhoumo (t^/nMl7^) [Legal Weekly] , Jan. 18, 2011, availa-

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INTERNATIONAL LAW AND POLITICS [Vol. 43:699

center and claiming they resulted from torture. The prosecu-
tion denied any misconduct and presented interrogation
records that showed no trace of abuse. The judge, not under-
standing that the burden is on the prosecution to provide
proof of the confession's admissibility sufficient to dispel any
doubts, was unsure how to proceed. To Chen, the answer was
obvious, "those prosecuting the case must demonstrate how
the wounds occurred, if they can't explain, the questionably
obtained evidence cannot be used." 19

Part of the challenge may simply be a lack of judicial fa-
miliarity with handling the new Rules. Qian Lieyang, head of
the Beijing Lawyers Association Criminal Procedure Commit-
tee, optimistically stressed that judges require time to digest
the Rules before they can be successfully implemented. 20 Pre-
viously, judges have deferred to the prosecution, as the office
with the authority to supervise investigations, in identifying co-
erced confessions, but they must now learn to take a more ac-
tive role. "In the past they were accustomed to eating with
chopsticks, switching to a knife and fork will take time." 21

Others, like Chen Weidong, are more cynical, and ques-
tion whether judges are independent enough to ever rule
against the prosecution and police. Chen says that many
judges, at some level, still consider police, prosecutors, and
courts to be allies in a struggle against crime, and view defend-
ants as the enemy camp. 22 Chinese law emphasizes coopera-
tion among these three government offices rather than checks
and balances, and it will be difficult for the courts to both
monitor and cooperate with prosecutors. Further, courts are
reluctant to make an enemy of public security forces whose
chiefs generally hold a prominent political position in the lo-

ble at http://www.legalweekly.cn/content.jsp?id=165676&lm=%E6%97%B
6%E6%94%BF.

19. Id.

20. Yang & Zhang, supra note 4. It's interesting that Qian, a proponent
of the Rules, still identifies the exclusionary rules as a foreign implement.

21. Id.

22. Chen Weidong JI^K) , Zhongguo xingshi zhengjufa de xinfazhan: ping
liangge zhengju guiding &W\ffl^W$&tift§r%tWk: WWI^vEMM/ti) [ New De-
velopments in China's Criminal Evidence Law: Comments on the Two Evi-
dence Rules], 5 FaxueJia [Jurists Review] at 27 (2010), available
at http:/ /www.zwjkey.com/onews.asp?Id=6737.

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cal party committees that control their funding and personnel
decisions.

These attitudes have not only caused judges to demand
too much evidence of defendants, but have also led them to
ask too little of prosecutors. Article 7 suggests interrogation
records and audio or video recordings as specific means of
proof that a prosecutor might offer to demonstrate a confes-
sion's legality, and requires that she ask the court to call non-
investigative personnel present at the interrogation or other
witnesses to testify. Written explanations of the circumstances
may be submitted if they are signed or sealed by investigators
as well as the prosecution. Only if the court still has doubts
must the actual investigators be called to testify in court.

The danger of explicitly listing means of proof is that
judges may assume that providing such evidence is automati-
cally sufficient to discharge the prosecutors' burden and estab-
lish that confessions were acquired legally. Xinjiang lawyer
Cao Hong tells of a case, where the court consistently ap-
peared ready to exclude a confession, but, after prosecutors
issued a document with an official seal saying that there was no
torture, simply proceeded as if the issue was resolved. 23

The case of Zhang Guo, the former head of a county
grain management office in Gansu, shows how article 7 might
actually make it more difficult to exclude evidence. Zhang was
accused of falsifying overtime records and stealing hundreds
of thousands of Renminbi. 24 At trial, he was found guilty, but
on appeal alleged that his earlier confession was the product
of torture, and the intermediate court returned the case for a
rehearing at which Zhang was exonerated. All this was before
the release of the new Rules and predicated solely on the ex-
isting requirement that coerced confessions not be the basis of
conviction. The prosecution then appealed, and the interme-
diate court, now following the new Rules, heard testimony
from the investigators. The court quickly found that the con-
fession was legal and sentenced Zhang to ten years. It is possi-

23. Yang & Zhang, supra note 4.

24. Li Yujun (^l!P^P)> Song Xuequan (5^:^130 & Gao Youzheng

, Gansu baiyin yunyong paichu feifa zhengju guiding kangsu yi anjian
mmmmmmtmrnm^m^-m^) [A Case of Prosecutorial Ap-
peal Using the Exclusionary Rules in Baiyin City, Gansu Province] , Jiancha
PvIbao (^IH B fi) [Procuratorial Daily] , Apr. 15, 2010, available at http://
news.jcrb.com/jxsw/201009/t20100915_444727.html.

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ble that the testimony denying coercion was truly persuasive,
but one wonders what the police might have said that had not
already been raised at the earlier hearings. More likely, the
court simply felt that prosecutors had satisfied their burden by
complying with article 7.

Chen Weidong, mentions a similar case where, before the
release of the Rules, a judge found a defendant innocent be-
cause the key confession was forced. Following the release of
the Rules, the prosecution appealed, and offered a signed
statement saying that there had been no torture. The confes-
sion was immediately admitted. Chen says that because of
such cases he "is very concerned that the new rules might be-
come an obstacle to the exclusion of evidence." 25 This danger
is even more apparent when considering the exclusion of doc-
umentary and physical evidence. Article 14 requires that such
evidence be excluded only when it was illegally acquired,
might seriously impact trial fairness, and there have been no
remedial measures taken or explanations given for the illegal
conduct. Prior to the rules, illegal evidence of all kinds would,
in theory, have been unconditionally excluded from being the
basis of indictment or conviction.

It would be unfair not to mention that the use of any in-
court testimony in criminal cases is a major advance for China.
More promising still, reports from Gansu, Sichuan, Zhejiang,
and Jiangsu all indicate that investigators have actually ap-
peared at trial and endured questioning on the legality of con-
fessions. In-court witnesses, at least, can be cross-examined and
challenged, but what about written records, explanations, or
recordings? Moreover, all of the evidence supporting the ad-
missibility of confessions is developed entirely by those seeking
conviction, and it is not such a stretch to imagine that those
willing to employ torture to break a case would be just as will-
ing to lie or falsify records. Lawyers are not allowed to attend
their clients' interrogations, and the detention centers are
under police control, so any foul play can be conducted and
concealed behind firmly closed doors. Even when witnesses
appear, it is likely that a ruling on an allegation of torture will
ultimately hinge on a simple decision as to who is more credi-
ble, the police or the accused, and Chinese judges have every-
thing to gain by siding with police.

25. Yang & Zhang, supra note 4.

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IV. Excluded but Not Forgotten

The most glaring problems with the Rules' design relate
to what evidence must be excluded and what exclusion actu-
ally means. Although the Rules mention "exclusion of evi-
dence" in their full title, in the actual text, the term "exclude"
is only applied to testimony, while other evidence "cannot be
the basis of conviction." Illegal testimony is defined as "state-
ments by a criminal suspect or defendant obtained through
illegal means such as forced confessions, as well as witness testi-
mony or victim statements obtained through illegal means
such as the use of violence or threats."

This definition immediately raises a number of concerns.
First, the Criminal Procedure Law defines illegal evidence-
gathering more broadly by forbidding forced confessions and
evidence collected by threat, enticement, deceit, or other un-
lawful means. 26 The Rules seem to have entirely omitted the
latter two methods. It remains unclear whether or not the
"such as" is meant to encompass enticement and deceit, or if
the Rules intentionally limit the scope of evidence to be ex-
cluded. Debate also continues as to whether "soft torture,"
such as denying food, sleep, comfort, or water, would be con-
sidered a forced confession. 27

A second problem involves the effects of exclusion. The
Rules clearly state that excluded oral evidence cannot be the
basis of conviction, approving arrest or indictment, but it re-
mains unclear whether it can be used for other purposes, such
as impeachment or as a factor at sentencing. The Rules have
no mention of a "fruits of the poisonous tree doctrine," so one
dangerous, but clearly permissible, use of an illegally extracted
confession would be to gather leads in finding additional ad-
missible evidence, witnesses, or suspects.

The failure to ban derivative evidence becomes particu-
larly treacherous when related to multiple confessions by the

26. Criminal Procedure Law article 43.

27. Yang Ming ||;H^ & Li Zhulin (^j/pf?f;) , Zhuanjia cheng feifa zhengju
paichu xingui xuanshi yiyi dayu shiji zuoyong

(^mmmimmmm^mxx^m*im) [Experts s ay that the

Symbolic Value of the Exclusionary Rules Is Greater than Their Practical

Effects], LlAOWANG DONGFANG ZhOUKAN {WW.MJjM^l) [ORIENTAL OuT-

LOOK],June 7, 2010, available at http://news.sina.com.en/c/sd/2010-06-07/
1 7232042855 l.shtml.

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INTERNATIONAL LAW AND POLITICS [Vol. 43:699

same suspect. After learning that an accused seller of counter-
feit bills may have been beaten before confessing during his
arrest, one Jiangsu prosecutor investigated and decided that
the evidence should be excluded. To make sure he didn't lose
the case on account of the violation, however, he interrogated
the suspect again, recording the entire process, to supplement
the evidence. When he appeared in court to indict, he
proudly handed the court and police a notice saying that "de-
fendant Gao's confession made before he entered the deten-
tion center has been excluded and doesn't serve as the basis
for this indictment." The later confession, of course, was an-
other story. If there is no inquiry into the independent volun-
tariness of a second confession, there is little to stop further
interrogation from becoming a backdoor for admitting all ille-
gal confessions. A suspect who has confessed once under tor-
ture is unlikely to understand that subsequent confessions
might have a different legal significance or that torture won't
resume if his story changes. 28

Finally, illegal testimony is defined to include both defen-
dant's confessions and statements by witnesses or victims, but
the Rules inexplicably treat these categories quite differently. 29
All the procedures discussed above expressly apply only to the
accused's pre-trial confessions. Under article 13, the legality of
witness and victim testimony may be challenged by either
party, but only when the witness does not appear in court. The
party submitting this evidence has the burden of proving that

28. For a discussion of multiple confessions under the Rules, see Wang
Zhenfeng (zEjMW^) & Q m J mson g > "Zhenju guiding" you guan
zhengju paichu guize de lijie he shiyong

({vEffiMfe) ^immmMmmmmUmm [On the Understanding and
Application of the Exclusionary Rules found in the "Evidence Regulations"],

6 GUOJIA JlANCHAGUAN XUEYUAN XUEBAO (gj^l^^^^^^flx) [JOURNAL OF

National Procurators' College] (2010), available at http://www.jcgxy.
org/llpt/201012/t20101215_479486.shtml.

U.S. precedent has recognized that once a suspect has confessed once,
he is more likely to do so again, but the law does not categorically exclude
later confessions following an original inadmissible confession. United
States, v. Bayer, 331 U.S. 532 (1947 ). Instead, courts consider the voluntari-
ness of the second confession.

29. Some U.S. courts distinguish between confessions of the defendant
and witness statements as well, but this is rooted in Fifth Amendment protec-
tions, which provides specific protection against s^incriminating state-
ments. The Chinese Criminal Procedure Law treats all methods of illegal
evidence gathering equally, in a common article.

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711

it was legally acquired, but no specific standards of proof for
demonstrating legality are identified. The introduction of
prosecutorial challenges implies for the first time that evi-
dence may become illegal not only through police miscon-
duct, but also through the improper evidence-gathering of the
defense or third parties. If such challenges are abused by the
prosecution, they could become a real barrier to the use of
defense witnesses.

V. Conclusion

The Rules, even if strictly implemented, will not end the
torture of Chinese criminal defendants. They represent a se-
ries of half-measures, likely the result of compromise among
the drafting agencies; they make grand gestures towards pro-
cedural fairness, only to stop short of demanding it. The
threat of lost convictions resulting from excluded confessions,
for example, provides some incentive for police to reform
their conduct, but allowing them to rely on evidence derived
from illegal interrogations leaves ample utility in continued
torture. Lawyers are allowed to directly challenge evidence
and even cross-examine investigators, but are still not empow-
ered to attend interrogations, where even their silent presence
might deter police misconduct. Audio and visual recordings
of interrogations are strongly encouraged, but there is no re-
quirement that unrecorded confessions be excluded.

These issues are likely to remain academic. Those lawyers
not cowed into avoiding the confrontation required to raise
the issue of coerced confessions, find themselves in an uneven
battle to make their case. Courts, predisposed to side with the
police, demand proof of torture that lawyers are systematically
prevented from gathering, while "public security and prosecu-
tors may collect and tailor evidence according to their own
needs, with almost no restrictions." 30 Even when torture is
exposed, police may face only a reprimand 31 and are rarely

30. Gongquanli zuo weizheng: wuren zhuijiu, wufa zhuijiu
{^UtSi^iX • Jd&Wt) [State Power Perjury: No One to In-
vestigate, No Way to Investigate] , Nanfang Zhoumo (ftfl'jj [Southern
Weekend], Jan. 28, 2011, available at http://nf.nfdaily.cn/nfzm/content/
201 1-01 /28/content_l 9689941. htm (quoting Criminal Procedure Prof.
Zhou Xin of the China Public Security University) .

31. Id.

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INTERNATIONAL LAW AND POLITICS [Vol. 43:699

prosecuted. Truly eliminating torture will require a transfor-
mation in legal culture, such that all tainted evidence is ex-
cluded, and torturers are prosecuted to the fullest extent.